This class action involving long-term foster care in Texas was filed on March 29, 2011, in the U.S. District Court for the Southern District of Texas. The plaintiff class of children in long-term foster care was represented by private counsel and Children's Rights, Inc.; they sought declaratory and ...
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This class action involving long-term foster care in Texas was filed on March 29, 2011, in the U.S. District Court for the Southern District of Texas. The plaintiff class of children in long-term foster care was represented by private counsel and Children's Rights, Inc.; they sought declaratory and injunctive relief, claiming that the state failed to protect foster children from systemic harm.

The complaint alleged that defendants' frequent moves of the foster care children between placements was harmful; that the state placed kids in inappropriate congregate settings, failed to protect them from abuse and neglect in state custody, denied them necessary services, separated them unnecessarily from their siblings and deprived them of family visitation, and generally failed to find them permanent families or to raise them appropriately so that they were equipped to live independently once they aged out of foster care. All this, the plaintiffs said, was due to understaffing and mismanagement, and violated Substantive Due Process, Procedural Due Process, and the First Amendment associational rights of the plaintiff class.

The requested relief included regulation of caseloads, imposition of professional licensing standards, and the like. The plaintiffs also sought appointment of a monitor.

The plaintiffs filed their class certification motion a week after the complaint. On June 5, 2011, the District Court (Judge Janis Graham Jack) granted the motion for class certification. The state appealed.

On March 23, 2012, citing the intervening Supreme Court precedent of Wal-Mart v. Dukes, the Court of Appeals for the Fifth Circuit (Garza, J.) held that the district court had erred by failing to conduct the "rigorous analysis" required by Fed. R. Civ. P. 23(a)(2), and that the district court abused its discretion by certifying a class that lacked cohesiveness under Rule 23(b)(2). The case was remanded for reconsideration of the class application under the appropriate standard. 675 F.3d 832 (5th Cir. 2012).

The plaintiffs filed a second motion for class certification in October 2012. After a three-day hearing in January 2013, the Court found that the requirements of Rule 23(a), as explained in Dukes, were satisfied. On August 27, 2013, the court certified a general class (all children in the "permanent managing conservatorship" in Texas) and three subclasses (children in a licensed foster care placement; children in foster group homes; and children receiving basic childcare services). 294 F.R.D. 7 (S.D.Tex.2013). The defendants appealed, but the Fifth Circuit dismissed their appeal as untimely on November 19, 2013, because the defendants filed a day too late. 547 F. App'x 543 (5th Cir. 2013).

The case proceeded to trial in December 2014. For two weeks, the parties presented evidence to the district court. Following the trial, on December 17, 2015, the district court ruled for the plaintiffs, declaring that Texas must make targeted changes to its foster care system. The court found that the state put kids at risk because of high caseloads, dangerous foster group homes, inadequate investigations into abuse and neglect reports and a lack of placement options. The court mandated an immediate end to the "unsafe placement" of children, including ceasing assigning children to foster group homes that lacked 24-hour awake-night supervision. The court retained jurisdiction to issue orders as necessary to remedy the constitutional violations described in the order and opinion. 2015 WL 9244873 (S.D. Tex. Dec. 17, 2015).

The State asked the court to stay the order, but the court denied this request. The state appealed to the Fifth Circuit, which also denied the state's request on March 21, 2016.

Also on March 21, 2016, the district court appointed two experts as special masters, charged with overseeing the reform of Texas' foster care system. Reform is ongoing as of April 19, 2016.